Critical Issues in the Senate Defense Appropriations Bill

July 11, 2014

Service members from the Senegal Military Police, United States Army, United States Marines and Senegalese Paratroopers stand in formation for Exercise Western Accord opening ceremony [US Army Africa photo by by Staff Sgt. Donna Davis, 6/16/14]

As the Senate begins consideration of Pentagon spending next week, several issues in the proposed defense budget warrant closer scrutiny. The Defense Appropriations Bill will be marked up at the subcommittee level next week and legislators should pay careful attention to the Administration’s proposals for a Counterterrorism Partnerships Fund (CTPF) and European Reassurance Initiative (ERI); both programs have been framed with sound policy objectives, but Congress should not fund these expensive measures without greater clarity about their implementation, which could circumvent base defense budget caps and critical human rights laws. Additionally, the Senate may also have to contend with amendments that would impose additional transfer restrictions on detainees at the prison at Guantanamo Bay. These new proposals are unnecessary given the prudent restrictions already in place.

The Senate should demand more clarity about the proposed CTPF, and should not fund the program unless it adheres to existing human rights protections.

It is unclear how the CTPF will relate to existing U.S. training and assistance programs. When President Obama announced the CTPF in his speech at West Point in May, he said the fund would “allow us to train, build capacity and facilitate partner countries on the front lines” for missions in Yemen, Somalia, Libya, Mali, and Syria. This strategy, President Obama said, “expands our reach without sending forces that stretch our military thin, or stir up local resentments.” While shifting to a “light footprint” counterterrorism strategy is a positive step, the Administration should clarify how the CTPF fits with existing programs. Politico analyzed four other efforts that are similar in nature to the proposed CTPF and noted that the primary difference is the dramatically higher cost of the CTPF.

The CTPF is not intended to fund combat operations and therefore should not be funded from the Overseas Contingency Operations (OCO) budget. The CTPF does not propose to fund combat operations, and comparable funds from other agencies draw primarily from base funding, such as the State Department’s Foreign Military Financing program, of which $5.1 billion was requested through base funding, and about one-tenth that amount was requested through OCO. Misusing OCO funds for activities that should be in the base budget presents sustainability problems for activities shoehorned into OCO. Even Rep. Buck McKeon’s (R-CA) mark of the National Defense Authorization Act (NDAA) expressed concern: “The committee is concerned about the large portion of enduring activities, training, sustainment, and other military requirements being funded through amounts authorized to be appropriated for OCO.” [Chairman’s Mark, Sec. 332]

The CTPF should not be funded unless the program adheres to existing human rights legislation. The President’s budget request for the program includes language that would allow the Secretary of Defense to use CTPF money “notwithstanding any limitation in a provision of law that would otherwise restrict the amount or recipients of such support or assistance.” This would effectively allow the Department of Defense to circumvent the Leahy law. The Leahy law (or laws, as there are State and DoD versions), as described in a January 2014 Congressional Research Service report, “prohibit[s] assistance to foreign military and other security units credibly believed to be involved in a gross violation of human rights.” Earlier this week, the Washington Post came out emphatically against this effort to skirt the law, noting in an editorial that “allowing aid to flow to foreign military units that commit major human rights crimes cannot be in the U.S. interest in any circumstances.” Congress should not fund the CTPF unless it is legally obligated to comply with the Leahy law.

As NSN Senior Advisor Maj. Gen. Paul Eaton (Ret.) notes, “The value of the Leahy Law is that it serves as a moral guide to the application of U.S. military engagement. Some in the U.S. armed forces have argued that the law frustrates U.S. partnership at precisely the moment we need most to influence better behaviors. This dilemma has a solution embedded in the amendment itself, which provides that if human rights remediation has begun, U.S. assistance can be brought to bear. If the country recognizes that it has a human rights issue with the targeted units, a specific request to the United States to help remedy this would seem to open the door for valuable engagement.” [CRS, 1/29/14. Washington Post, 7/7/14]

The proposed ERI has potential value, but should not be funded without greater clarity or with “magic money.” The European Reassurance Initiative (ERI), which proposes $1 billion for funding a modest force posture change in Europe, has the potential value to reassure our NATO allies after Russia’s aggression in Ukraine. However, the ERI is expensive and, as with the CTPF, Congress should demand greater clarity about the program before funding it. This program is slated to be paid for through OCO funding – meant to pay for combat operations, and not subject to the Budget Control Act (BCA) spending caps. As NSN has noted previously, this is not the appropriate source of funding for the ERI. The measures included in the ERI, such as training, are typically found in base spending. This is a problem that has become more prevalent, as Defense News reports: “Such war budgets have served as a relief valve from the federal spending caps that went into effect in 2013. ‘Everybody’s now discovered the magic money,’ said Gordon Adams, an analyst with the Stimson Center and a professor at American University, who oversaw defense budgeting in the Clinton Administration.” By funding this program through OCO, it runs the risk of becoming a slush fund that skirts base defense budget caps. [Defense News, 6/29/14]

The Senate should not impose any more restrictions on transferring detainees from the Guantanamo Bay detention facility. As a matter of national security, the U.S. government should close the prison at Guantanamo Bay and not enact more measures that will unnecessarily prolong its operation. The most recent effort to do this was the House’s amendment to the NDAA to ban all detainee transfers for a year – a reaction to the release of Sgt. Bowe Bergdahl in exchange for five Taliban prisoners that the Joint Chiefs of Staff have all said do not pose a threat to the United States. Strict rules are already in place to ensure that any detainee transferred from Guantanamo will not pose a threat to the United States. As Human Rights Watch noted in a June 18 letter, “The NDAA that Congress passed at the end of last year clarified and modified the Secretary of Defense’s authority to transfer detainees to foreign countries and provided important additional flexibility to close Guantanamo. Specifically, the provisions in the NDAA replaced a cumbersome certification and waiver regime with a more sensible, factor-based standard designed to mitigate any risks related to transfer. The provisions require the Secretary of Defense to consider a host of security-related factors in determining whether a transfer is in the national security interests of the United States.” Adding restrictions in the Defense Appropriations bill would not only be unnecessary, but counterproductive to the goal of closing the Guantanamo detention facility. [Human Rights Watch, 6/18/14]